Industrial Relations Commission of New South Wales CITATION : New South Wales Nurses' Association (on behalf of David Harding and Western Sydney Area Health Service [2002] NSWIRComm 35 APPLICANT PARTIES : New South Wales Nurses' Association, on behalf of David Harding RESPONDENT Western Sydney Area Health Service FILE NUMBER: 4577 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - allegations of gross misconduct - illegal drug use and procurement - failure to inform management of serious breaches of Code of Conduct - duty of care to mentally ill patients - threats and physical violence - credibility of witnesses - balance of probabilities - self incrimination - s128 of the Evidence Act - privilege of union documents - flawed investigation - treatment of witnesses - reinstatement sought. CATCHWORDS : Held, Commission has no power to grant certificate under s128 of Evidence Act - no special grounds for union documents to be regarded as privileged - applicant breached Code of Conduct - applicant failed to report serious incidents - applicant failed to provide appropriate level of duty of care - applicant involved in illegal drug use and procurement - applicant's evidence on crucial matters not credible - employer's investigation not without flaws - employer's demands on other employees during investigation not appropriate - applicant afforded procedural fairness - allegations proven on balance of probabilities - dismissal not harsh, unjust or unreasonable - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Evidence Act 1985 Briginshaw v Briginshaw (1938) 60 CLR 336 Wang v Crestell Industries Pty Ltd, 73 IR 454 Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Franklins Ltd v Webb, 72 IR 257 Standley v Electronics Boutique Australia Pty Ltd (unreported, Sams DP, IRC4516 of 1998, 18 March 1999 Byrne & Anor v Australian Airlines (1985) 185 CLR 10 Andric v Franklins Ltd [2001] NSWIRComm 1001 (11 January 2001) Crown Employees (State) Award No 2, 52 IR 376 Hill v Department of Juvenile Justice (unreported, Sams DP, IRC6474 of 1999, 27 July 2000) Perkins v Grace Worldwide (Aust) Pty Ltd, 72 IR 186 NSW Public Service Professional Officers Association v Forestry Commission, 39 IR 46 Oswald v NSW Police Service, 90 IR 42 Macleay Valley Health Service v Jeffree, 58 IR 187 CASES CITED : Jones v Dunkel (1958) 101 CLR 298 Burke v McGirr, 87 IR 54 Shop Distributive & Allied Employees' Association v Jewel Fod Stores, 22 IR 2 Bigg & Anor v NSW Police Service, 80 IR 434 Electricity Commission of New South Wales t/as Pacific Power v Crump, 48 IR 296 Busways v Johnson, 55 IR 255 Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council [2001] NSWIRComm 91 Johnson v Catholic Education Office, Diocese of Parramatta, 87 IR 57 Abboud v The State of New South Wales (Department of School Education), 92 IR 32 Antonakopoulos v State Bank of New South Wales, 91 IR 385 Foster v Woolworths Limited (unreported, Sams DP, IRC6385 of 1999, 27 October 2000) Rapp v Wauchope RSL Club, 81 IR 434 John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972) HEARING DATES: 09/28/2001; 10/03/2001; 10/04/2001; 10/05/2001; 11/23/2001 DATE OF JUDGMENT: 04/05/2002 APPLICANT Mr N Dawson of counsel UNION New South Wales Nurses' Association LEGAL REPRESENTATIVES: RESPONDENT Mr P Newall of counsel Instructed by: Mr K Gillies Western Sydney Area Health Service JUDGMENT: - 58 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 5 April 2002 Matter No IRC01/4577 NEW SOUTH WALES NURSES' ASSOCIATION (ON BEHALF OF DAVID HARDING) AND WESTERN SYDNEY AREA HEALTH SERVICE Application by New South Wales Nurses' Association, on behalf of David Harding, re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 35 1 This is an arbitrated decision, upon an application brought pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), by the New South Wales Nurses' Association ("the Association") on behalf of its member, Mr David Harding ("the applicant"). The application seeks reinstatement and/or compensatory relief arising from the applicant's alleged unfair dismissal by the Western Sydney Area Health Service ("the respondent"). 2 The applicant was employed as the Nursing Unit Manager at the Granville Rehabilitation Service ("the Service"). He commenced employment on 13 March 1995 and was dismissed for serious misconduct on 21 June 2001. The allegations of misconduct were that the applicant: 1 Instructed an employee of the service, Mr Kenneth Bevan to procure drugs (Indian Hemp) for you during working hours. 2 Failed to report a number of serious matters to management of the service. They are: a) heated arguments between Kenneth Bevan and yourself at Granville on 15th and 18th January 2001; b) a sexual assault on a female employee of Granville Rehabilitation Service by Kenneth Bevan on 9th January 2001; c) an assertion by Mr Bevan at Granville Rehabilitation Centre on 15th January 2001 that he had been to Cabramatta to purchase a handgun; d) an assertion by Mr Bevan that he had got a body buried, they haven't found yet. You indicated at the disciplinary interview that you had reported the matter to the Wollongong Police, but did not advise management of the service. 3 Knowingly authorised the use of an Area vehicle to be used in the purchase of illegal drugs during working hours. 4 Failed to put in place an adequate system for the monitoring and storing of mobile phone accounts. 5 Used the mobile phone contrary to Area policy. 6 Discussed the purchase of illegal drugs with Mr Bevan while driving a service vehicle during working hours with another Area employee present. 7 Condoned and took part in the consumption of alcohol at work. 8 Used illegal drugs in the presence of other Area employees. 9 Made contact with a person mentioned in the attachments to the letter sent to you advising of the disciplinary interview when specifically instructed not to. (Extracted from letter of dismissal). 3 Conciliation proceedings commenced on 19 July 2001. Mr N Dawson of Counsel appeared for the Association and Mr P Newall of Counsel appeared for the respondent. 4 Both Counsel expressed the view that there was little prospect of the matter being settled through conciliation and after preliminary submissions, the Commission determined: Having heard the submissions of both counsel and being conscious of the Commission's obligations under the Act in respect to taking whatever steps are necessary to have matters such as this settled, I am satisfied that a finding pursuant to section 87 should be made. The Commission is satisfied that the matter cannot be resolved through conciliation, and I intend to set it down for hearing. 5 Directions were issued accordingly. Applicant's Employment History 6 The applicant is a forty-seven year old registered nurse, who holds a Bachelor of Health Science. He was employed as Nursing Unit Manager at the Granville Rehabilitation Service from August 1995 to his dismissal on 21 June 2001. The Service is a twenty-eight bed, community based rehabilitation program for patients with long-term mental illness. The applicant supervised eleven full time staff of which Mr Bevan was a subordinate. 7 From 1973 to 1985 the applicant was employed in a number of hospital psychiatric facilities and from 1985 to 1995 held the position of Nursing Unit Manager at Cumberland Hospital. He had been the Association delegate at the time of his dismissal. 8 The applicant received a first and final warning in September 1994 following an assault on a fellow employee, Mr Mathew Chiu. The applicant received another first and final warning in March 2000, following a complaint from a doctor about his unprofessional conduct and inappropriate behaviour. 9 On 23 January 2001, Mr Bevan informed the respondent of his drug dealings with the applicant. The applicant attended a meeting at 11.30 that day with: Mr Kevin Freele Director, Greater Parramatta Mental Health Service Mr Gordon Foy Human Resources Officer, Western Sydney Area Health Service Mr Kevin Gillies Deputy Director, Human Resources Following the meeting, both Mr Bevan and the applicant were stood down on full pay pending an investigation. The Police were informed. On the same day, the applicant contacted the New South Wales Nurses' Association. 10 An investigation was conducted during February. On 5 March the applicant was advised to attend a disciplinary meeting on 6 March. He sought medical attention and was declared unfit for duty with depression. The interview was postponed. He remained off duty until 4 June 2001. 11 A disciplinary meeting was held on 4 June. Those attending were the applicant, Ms Keenan from the Association, Mr Foy, Mr Freele and Mr Whatmough, Director, Community Mental Health, Western Sydney Area Health Service. The meeting reconvened the next day when the applicant was informed that Management regarded the allegations as proven. 12 On 10 June 2001, the applicant was advised of his dismissal, effective from 21 June 2001. THE EVIDENCE 13 This case will be determined by the Commission making findings of witness credit. More particularly whether, on the balance of probabilities, the very serious allegations against the applicant are proven. From the respondent's evidence it is plain that following an investigation, it accepted the self-incriminating admissions of another employee, an habitual drug user, Mr Kenneth Bevan, as to his relationship with the applicant. Mr Bevan was dismissed by the respondent for his role in the matter and brings no complaint concerning his dismissal. Despite being subpoenaed to give evidence, Mr Bevan reaffirmed his self incriminatory admissions on oath before this Commission. I shall say more about this later. 14 The applicant provided two affidavits and gave oral evidence. Affidavit and oral evidence was adduced from the Association's Organiser, Elaine Keenan and Registered Nurse, Tracie Lea McMartin, an employee of the Western Sydney Area Health Service at Cumberland Hospital. Two statements from another employee, Mr Phillip Dubberley, were tendered in evidence; Mr Dubberley was not called to give oral evidence. 15 The respondent provided affidavit evidence from Mr Gordon Foy, Mr Graeme Whatmough and Mr Kevin Freele. All three gave oral testimony. The respondent subpoenaed Mr Kenneth Bevan, a registered nurse since 1979, formerly employed at the Granville Rehabilitation Service and registered nurse, Ms Justine Richardson. 16 There is a large body of conflicting evidence in this case. The Commission intends to approach the evidence by identifying each of the allegations made against the applicant and refer to the evidence adduced from the witnesses during the proceedings. The Allegations 17 As is evident from the reasons given in the letter of termination (see para 2) the allegations against the applicant may be broadly grouped into two categories: 1) The applicant's alleged instruction to another employee, Mr Bevan, to procure illegal drugs for him during work hours (the drug related matters). 2) The applicant's failure to report serious matters to management affecting the applicant's duty of care to patients and responsibilities as a supervisor. 18 Two other allegations were made - consuming alcohol during work hours and disobeying a management direction not to contact any person involved in the disciplinary investigation. 19 Both Mr Whatmough and Mr Foy said the allegation of consuming alcohol on work premises was not a factor in their decision to dismiss the applicant. As a result, I do not find it necessary to take this matter into account. 20 I shall later refer to management's direction for the applicant not to contact any person about the matters being investigated. 21 Both categories of allegations involve the relationship between the applicant and Mr Kenneth Bevan. Clearly, the most serious of the allegations are the drug related matters. 22 During the respondent's investigation, and in the evidence presented to the Commission, the two men had diametrically opposed views of this relationship, of the version of events and other related matters. It is obvious the respondent accepted Mr Bevan's version of events over that of the applicant and acted accordingly. 23 It seems to me that the test of the truth of the allegations against the applicant is best considered in the context of the real relationship between the applicant and Mr Bevan. At this point, I emphasise that the respondent's allegations and subsequent disciplinary investigation occurred as a direct consequence of Mr Bevan revealing to management the nature and scope of this relationship. 24 Mr Bevan said he first met the applicant in August 1983 and knew him socially before starting work at Granville Rehabilitation Service. In May or June of 1997, after hearing of a vacancy at the Service, Mr Bevan expressed interest to another employee. Soon after, the applicant gave him an application form and invited him to join the team. The next day (or day after), Mr Bevan said he was interviewed by the applicant and another person and was soon after transferred on secondment to the Service. 25 Mr Bevan started collecting the applicant's drugs soon after commencing at Granville in 1997. He deposed that every two or three weeks the applicant would say to him "I have a job for you this morning". Mr Bevan knew it meant collecting marijuana for the applicant at a premises in Seven Hills. The applicant had introduced him to his drug dealer "Jake" (he didn't know his real name). In evidence, Mr Bevan described Jake's house in detail. He had two phone numbers on which to call Jake. Before each pick up Jake would be called and Mr Bevan would be told to go and collect the drugs. This would occur during, or outside work time, using a work vehicle. 26 The applicant would usually give Mr Bevan $220 a time and the money would be exchanged for a glad sandwich bag of marijuana. Mr Bevan would usually pass the marijuana to the applicant at work, when they were alone. 27 Mr Bevan described himself as a chronic marijuana user during the period from 1981 until December 2000. Mr Bevan said Jake was not his drug dealer. He bought his drugs from someone whose rates were cheaper. He said the applicant didn't like his supplier and didn't want to subsidise her. Mr Bevan denied using amphetamines. He admitted to five convictions for drug matters and for an assault and malicious damage. In cross examination, Mr Bevan said the assault occurred when he hit a school friend who was having an affair with a woman he was engaged to. As a result of hitting him, his friend's head went through a fibro wall. 28 Mr Bevan said that prior to a drink driving charge in 2000, his last offence was sixteen years ago. 29 Mr Bevan deposed that the applicant would visit his home about two or three times a week. They would have a few beers, a few "bongs" and the applicant would then drive home. Mr Bevan had visited the applicant's home a couple of times. 30 Mr Bevan deposed that just before Christmas 2000, he had decided he wasn't going to collect drugs for the applicant any more. However, at about this time, the applicant had asked him to wait, pick up some money and see Jake for him. He refused to do so. The applicant left a message on Mr Bevan's mobile saying, "you forgot the money, you fucking idiot". From this time Mr Bevan said he didn't collect drugs for the applicant again. 31 Mr Bevan said that he and the applicant argued on 18 January 2001. The applicant was still upset over Mr Bevan's refusal to pick up his drugs. 32 Mr Bevan deposed that he contacted WhistleBlowers New South Wales after he was "throttled" by the applicant on 18 January. They were supportive but couldn't do anything other than suggest he weigh up the risks of reporting his allegations to his employer. Mr Bevan didn't initially go to the police because he said, "I'm not terribly fond of the police". Later however, he had spoken to the police and gave them certain information. However he had never been asked to make a statement to the police about his, or the applicant's drug use. 33 Mr Bevan told Mr Freele and Mr Gillies on 23 January 2001 that his refusal to buy the drugs was the reason the applicant attacked him on 18 January. 34 Mr Bevan said, in coming forward with his allegations, he expected to be dismissed and deregistered. He came forward out of fear for his life. He believed that exposing the applicant would make it more difficult for the applicant to carry out his threat of having him killed. Notwithstanding the applicant's threats, Mr Bevan thought the applicant to be a very likeable person and he had enjoyed his company over the years. 35 The bulk of the applicant's affidavit and oral evidence dealt with his relationship with Mr Bevan. He described a number of incidents, which he believed proved Mr Bevan to be unstable, irrational, aggressive, paranoid and suffering from amphetamine psychosis. In addition to Mr Bevan's often bizarre behaviour, the applicant had a number of concerns with his overall conduct, interaction with other staff and dress standards. 36 The thrust of the applicant's evidence was that he was Mr Bevan's superior. He rejected Mr Bevan's claims that they were friends. He denied they had frequent social interaction or that they smoked marijuana together. He denied hiring Mr Bevan in 1997. 37 The applicant described the following incidents as examples of Mr Bevan's bizarre behaviour. Mr Bevan's responses are included. 38 The applicant once observed Mr Bevan on duty dressed in patient's pyjamas and cleaning an axe and other tools. He did not report this incident to anyone in management because Mr Bevan was well known for his odd behaviour. In cross examination, the applicant was asked if he actually witnessed this incident or was told about it by another person. Mr Bevan deposed that he would often clean and sharpen his leather work tools on night shift to relieve the boredom. The incident referred to was in 1987 and involved a supervisor, Irene Williams. She had thought it was funny and was pleased to find him awake and alert on night shift. He had worn a patient's pyjama coat reversed to protect his uniform from oil or grease. Mr Bevan said the applicant had never spoken to him about this incident. 39 In December 2000, Mr Bevan told the applicant he had picked up a hitchhiker in Wollongong, murdered her and buried her body. Mr Bevan had repeated this claim several times. The applicant dismissed his claims as fantasy. He suspected Mr Bevan to be suffering from amphetamine psychosis. He said it was only after Mr Bevan's allegations against him that he went to the police. The applicant now believed Mr Bevan had murdered two people. Mr Bevan denied ever murdering anyone, or telling anyone that he had. He said that in 1987 a patient at Cumberland Hospital had been murdered and the applicant was convinced he knew who did it. He had told the police who the murderer was. The applicant would often speak about this incident. 40 The applicant said Mr Bevan once brought a book to work containing photos of missing persons and expressed disappointment that he wasn't in it. Mr Bevan denied this and said he didn't even know such a book existed. 41 The applicant said in December 2000, Mr Bevan brought a photo album to work and showed him a photo of his vehicle which the police were looking for in respect to the disappearance of a woman in Wollongong. Mr Bevan said he didn't possess a photo album, or photos of any of his vehicles. 42 In December 2000, Mr Bevan had returned from leave sporting a moustache. He told the applicant he wanted to look like "Chopper Read" and might even cut his ears off. Mr Bevan said he sometimes grew a moustache during winter, but would not have done so in December. He denied telling the applicant he wanted to look like "Chopper Read". 43 In December 2000, an employee at Granville, Polly Cameron, reported to the applicant that Mr Bevan was signing in for work as Ken "Hitler". The applicant reminded him to act professionally. Mr Bevan agreed that he had signed on once as "Ken Hitler" and had used other funny names. He believed the applicant thought it was funny. 44 In early January 2001, Ms Cindy Kwok, an employee of Merrylands Health Team, reported to the applicant that Mr Bevan was acting "irrationally and rudely". The applicant said he arranged for this matter to be resolved. Mr Bevan said the applicant never raised this matter with him. 45 On 10 January 2001, a female employee Rajni Kumar, rang the applicant to complain that Mr Bevan had licked her on the leg. No formal complaint was made. The applicant deposed that he made no report of the incident and told no one in management, because Ms Kumar asked him not to. He agreed he had a responsibility to report such matters to management in accordance with Departmental policy. Mr Bevan deposed that this incident never occurred and the applicant had never raised it with him. 46 On 10 January 2001, another employee, Phillip Dubberley, reported to the applicant that he and Mr Bevan were swapping cars because Mr Bevan believed his girlfriend's ex-boyfriend, a drug dealer, was out to kill him. Mr Bevan denied he ever wanted to swap cars for the reasons claimed by the applicant. At the time, he needed Mr Dubberley's car because it had a tow bar and he needed a trailer. 47 On 15 January 2001, in the presence of Mr Dubberley, Mr Bevan told the applicant he had bought a handgun in Cabramatta. On the same day, Ms Kwok again complained about Mr Bevan. She suggested he may be on stimulants. The applicant met Mr Bevan and raised these issues with him, expressing concern that his actions might be related to the drink driving charge Mr Bevan was soon to appear in court for. The applicant said Mr Bevan became irate and threatened to have him sacked. Mr Bevan said it would be easy to have him sacked, as the Director of Community Mental Health, Mr Graeme Whatmough, hated the applicant. The applicant deposed that Mr Bevan had referred to what he had just " got away with " and again mentioned the buried body. Mr Bevan then calmed down and told the applicant he had a brain lesion and that his girlfriend was using intravenous amphetamines. Mr Bevan asked the applicant for a reference for his court case. The applicant agreed and provided him with a glowing reference. Mr Bevan deposed that the applicant's version of this conversation is an utter fabrication, except for the issue of the reference for court. He said he never in his life had such a " clinically sterile conversation" with the applicant. Mr Bevan said this incident began after he had spoken to Mr Dubberley about a reference. Mr Dubberley had refused. The applicant overheard the conversation and said to Mr Bevan " that shows you a bit of insight for (sic) Phillip doesn't it? - he's not going to give you a reference. " Mr Bevan replied, " that's good coming from an unconvicted rapist ". The applicant whispered in Mr Bevan's ear " if you are going to start calling people a rapist around here, I would be very bloody careful ". Mr Bevan said he never mentioned a brain lesion or that he had buried a body. Mr Bevan deposed that later that day he was called to the applicant's office. The applicant abused him and mentioned the names of two heroin addicts in Merrylands who would do " a favour " for him. Mr Bevan took this as a threat to have him killed. Mr Bevan said the next day he told Mr Antony Mullen, a clinical nurse consultant, that there were issues between himself and the applicant. He asked Mr Mullin to keep quiet about the death threats because he was " frightened ". Mr Bevan said he never told the applicant, or Mr Dubberley, that he had gone to Cabramatta to purchase a gun and had never done so. 48 On 17 January, Mr Bevan reported for work wearing open toed sandals. The applicant asked him to go home and change as wearing sandals was a breach of occupational health and safety regulations. The applicant claimed Mr Bevan refused. Mr Bevan deposed that the applicant had prepared a disciplinary letter for wearing sandals. He found this " ironic " as it had been 43 degrees on the day and two other employees had worn open toed shoes. The applicant had not asked him to go home and change. Mr Bevan did not believe he was in breach of occupational health and safety regulations. 49 On 18 January, Mr Bevan asked to speak to the applicant in his office. In the office the applicant said Mr Bevan began screaming incoherently and rattling furniture. He raised the buried body matter again. The applicant told him to settle down or he would call the police. Another employee downstairs, hearing the commotion, rang the applicant and asked him if he was alright. The applicant said he was. The applicant said he was worried about Mr Bevan's mental state, and asked him if he had a drug problem. The applicant suggested he seek immediate medical attention. Mr Bevan agreed he needed help and that his problems related to a brain lesion. He agreed to go, unaided, to his own doctor. The applicant denied any physical abuse of Mr Bevan. He said this incident lasted about fifteen minutes. Mr Bevan rejected the applicant's version of this incident. He deposed that he told the applicant he was " finished (with the applicant) standing over him " and he wouldn't accept being disciplined for petty issues, like wearing sandals. The applicant then grabbed him by the throat and they both fell to the ground. After a time, the applicant released his grip, stood between him and the door and wouldn't let Mr Bevan leave for twenty minutes. Mr Bevan said, at no time, did he mention the buried body or that he was going to the doctor. After he left the office, he picked up a client, took him to a barbecue and then went to his doctor, Dr Fernando. At the barbecue he told another employee, Jacqui Moore, " David has just throttled me ". He told Dr Fernando the same thing. 50 In cross examination, Mr Bevan agreed he had raised his voice in what was a heated discussion. He couldn't say who was doing the most yelling. He described how the applicant picked him up from a chair by the throat. Mr Bevan deposed that he didn't scream out for help from downstairs because he didn't know who was down there. Even though he was kept there for twenty or thirty minutes, he didn't call out. He explained that when the applicant stopped " throttling " him, he didn't need help. 51 On 19 January, the applicant met with Glen Hughes, a clinical nurse specialist, and Antony Mullen, a clinical nurse consultant, to discuss Mr Bevan's mental state. Mr Mullen said he had met Mr Bevan and believed he was suffering some sort of paranoia. Mr Bevan had told him the applicant was going to kill him. The applicant said he expressed concern for Mr Bevan's well being. 52 On 23 January (the day after Mr Bevan's court case), the applicant asked him how he fared. Mr Bevan had replied "I fixed them at court yesterday and now I'm going to fix you". Mr Bevan picked up two telephones and spoke into them at the same time. About the same time, two staff members in an adjoining office, Kanwaljit Khurana and Caroline Evans, expressed fear of Mr Bevan to the applicant. The applicant advised them to lock themselves in their office. The applicant proceeded to call Mr Roger Clarke, Acting Director of Community Mental Health and told him that something had to be done about Mr Bevan. Mr Clarke agreed to speak to Mr Gordon Foy. The applicant rang Mr Foy. Mr Foy had apparently already been contacted by Mr Bevan. Mr Bevan said on 23 January he had not even spoken to the applicant. OTHER EVIDENCE Ms Elaine Keenan 53 Ms Keenan was the Association organiser with the responsibility for representing both the applicant and Mr Bevan. Her evidence was directed to three matters: 1) Her representations on behalf of Mr Bevan. 2) Her role in the investigation. 3) Her inquiries of any police investigation. 54 Ms Keenan deposed that on the morning of 23 January 2001 she was informed by the Association's information officer that one of her members, Mr Ken Bevan, had phoned in a state of high anxiety. He had said someone was trying to kill him, that drugs were involved and he was going to go to management about it. Ms Keenan unsuccessfully tried to have an Association representative attend with Mr Bevan that day. He went alone to a meeting with Mr Freele, Mr Gillies and Mr Foy. Mr Gillies later informed Ms Keenan that Mr Bevan had made serious criminal allegations and the police had been informed. 55 Later, Ms Keenan phoned Mr Bevan. He told her that he had been assaulted by the applicant because he stopped getting drugs for him. Ms Keenan explained what was to happen where both persons were Association members. She described Mr Bevan as very agitated and had asked him if he was using "speed". After the meeting with the respondent, the applicant called Ms Keenan and told her he had been suspended. He said that Ken Bevan had made allegations against him that were rubbish and that the police were involved. 56 On 21 February, Mr Bevan phoned Ms Keenan to tell her he had been dismissed for supplying drugs to the applicant. She explained that his self incrimination meant it would be difficult for him to be reinstated. She would explore the options - including resignation. She contacted Mr Gillies. After Mr Bevan received his termination letter, Ms Keenan asked him what he wanted to do. He said he didn't want to file an unfair dismissal claim. He was moving to the mountains because the Banditoes " were after him ". Ms Keenan ceased representing Mr Bevan about 22 March 2001. 57 Ms Keenan said that initially she didn't know who was telling the truth. However, she told Mr Gillies on 23 January, before speaking to the applicant, that she was concerned with Mr Bevan's apparent drug use. She believed it was odd that Mr Bevan would "give himself up". She denied saying that "Bevan is mad" or that "Bevan is weird". 58 Ms Keenan was involved in the respondent's investigation of the allegations. After the staff at Granville were all required to write statements, she advised Mr Glenn Hughes, Acting Nursing Unit Manager, to have staff fax their statements for her to look at and review. She did not wish to have members incriminate themselves. She explained that " review ," meant to make changes such as expanding on points, spelling and grammar corrections. It would not change the intent of the statements. Ms Keenan was questioned as to matters left out of one employee's (Ms Cox) typed statement from what was contained in her original handwritten statement. She denied telling Ms Cox to leave out matters and said it was purely Ms Cox's decision. She believed the intent of the statement remained unchanged. 59 A number of employees complained to Ms Keenan about being required to write a statement, attending interviews without Association representation and being intimidated by management. She arranged to meet the staff. As a result, a formal grievance was made about the investigation process and how they felt their jobs were threatened by questioning the process. A subsequent five page grievance from the staff, dated 17 April 2001, identified the following: Endured several interviews Submitted, under pressure, several written statements Suffered unreasonable delays between interviews Received little, or no information Experienced undue stress/distress Been subject to an insensitive, unsympathetic management, evidenced by the lack of any meaningful support. It sought the following: i) Acknowledgement that the investigation could have been managed better. ii) An apology. iii) A full review of Area Policy and Procedure. iv) Clarification and consensus regarding the term "lawfully direct". 60 Ms Keenan told Mr Gillies that her members had fully co-operated. Employees had been interviewed three times and were concerned at threats by management. She complained at the lack of Association representation. She raised Ms Moore's specific complaint of Mr Gillies reducing her to tears in the interview. Ms Keenan gave evidence of Ms McMartin ringing her about an incident she witnessed five years ago involving Mr Bevan and the applicant. Mr Gillies had questioned her about it. Ms McMartin was very upset. The Association had not been told of this interview. 61 Ms Keenan had made contact with Parramatta and Castle Hill Police. She gave evidence that there had been no complaint, or report made by the Western Sydney Area Health Service about the applicant. No event number had been created at either Police Station, or anywhere else. This proved there had been no police investigation. Tracie Lea McMartin 62 The evidence of Ms McMartin was relied upon by the respondent as proof of the allegations against the applicant. 63 Ms McMartin had a physical relationship with Mr Bevan for about six months from November 1996 to June 1997. She had broken off the relationship and described him as "moody and controlling". Later, they occasionally met and said hello at work. 64 Ms McMartin deposed that, after having no contact with Mr Bevan for five years, she received a call from him on 12 February 2001. He asked to meet her. She refused. He told her that Mr Gillies was going to question her about her knowledge of drugs being sold at Granville Rehabilitation Service. He told her to just say yes to any questions asked. She said she was very upset by this conversation. 65 Ms McMartin said she met the applicant at Mr Bevan's home on three occasions in early 1997. Mr Bevan and the applicant were pleasant to each other and appeared to be friends. 66 On one occasion she saw Mr Bevan and the applicant smoking, but did not know what it was. This conclusion differed from her amended statement on 27 February 2001 in which she said "on these visits" she observed both of them smoking "what appeared to be marijuana". 67 On 16 February 2001, Ms McMartin attended a meeting with Mr Gillies and Mr Foy. She was not informed of the purpose of the meeting and not given an opportunity to have an observer present. 68 Ms McMartin gave evidence that Mr Gillies bombarded her with questions about her knowledge of Mr Bevan's drug use. She said he used to "smoke about thirty cones a day". When asked if she saw Mr Bevan and the applicant smoking marijuana, she said she saw them smoking once, but did not know whether it was marijuana. She was told to write a statement and not speak to anyone about the investigation. 69 In cross examination, Ms McMartin acknowledged she had not told Mr Foy the truth as to the last time she saw Mr Bevan. She had in fact visited his home in August 1997. 70 She wrote a statement, but was asked by Mr Foy to elaborate on it to include reference to the phone call from Mr Bevan telling her to answer yes to all questions. Ms McMartin said she was very stressed and upset and felt threatened that she couldn't help prove Mr Bevan's allegations. 71 Ms McMartin had contacted the Association to find out her rights. She denied doing so to find out what she should say. She was told by her Association representative that the Association couldn't understand why she would be involved when her only knowledge was about something four or five years ago and outside of work. 72 Ms McMartin gave evidence of another meeting with Mr Foy and Mr Gillies on 1 March. Mr Gillies asked why she had left out of her statement that she had seen Mr Bevan and the applicant smoking marijuana. She said she was scared of Mr Bevan. Mr Gillies said that Mr Bevan had been "fired" and she would be protected. 73 Ms McMartin said Mr Gillies was very loud and threatening. He insisted that she write that she saw the two men smoking marijuana. Ms McMartin said she was very upset and wanted to contact the Association. Mr Gillies said he didn't care "what the bloody Association said". He directed her to fix the statement. He had demanded she look at him. She said she was sobbing, distraught and shaking. She threatened to resign after leaving the meeting. 74 Later Mr Foy suggested that she write, "it appeared to be marijuana". This is what she wrote at the foot of her statement. She told Mr Foy that she was petrified of Mr Gillies. She found him extremely rude, intimidatory and threatening. Mr Foy said he understood and had said, "that it was just his manner". Ms McMartin conceded that Mr Foy had told her "we are not putting words in your mouth. You just write what you told us in the initial interview". 75 On 2 March Ms McMartin phoned in sick. She rang Ms Keenan later that day. Ms Keenan told her to write a grievance over her treatment. She did so on 7 March. No response had been received. 76 Ms McMartin's evidence as to whether she observed Mr Bevan and the applicant smoking marijuana is confusing. 77 Mr Foy said that at the first interview with Ms McMartin she told him and Mr Gillies that "I saw them smoking marijuana but I did not see any money change hands". Ms McMartin denied this conversation. However, her first statement did not mention smoking at all. She was asked to include a reference to it. 78 Ms McMartin amended her statement by including a reference to the men smoking what she believed was marijuana. 79 In evidence before the Commission, Ms McMartin initially said she didn't know what the men were smoking. She said that Mr Bevan was smoking "thirty cones a day". She acknowledged she knew the smell of marijuana. 80 When questioned if the pair were smoking a "bong" she replied "no - a joint. It could have been anything". 81 Mr Bevan confirmed he had a physical relationship with Ms McMartin from November 1996 to June 1997. She frequently visited his home and slept over most nights. He said she would join in smoking marijuana with him and the applicant. 82 Mr Bevan phoned her after his dismissal and told her it was likely she would be contacted by Mr Gillies. He told her "not to bullshit and tell the truth". When asked about her conflicting evidence Mr Bevan said he believed she was more likely to lie to protect herself. Ms Justine Richardson 83 Ms Richardson knew both the applicant and Mr Bevan socially. 84 Ms Richardson was subpoenaed by the respondent. This arose as a consequence of a significant inconsistency in the statement made by her at the time of the investigation with her admissions to Mr Foy and the applicant's counsel seven months later (19 September 2001). During the investigation, Ms Richardson told Mr Foy she once overheard the applicant ask Mr Bevan if he would purchase some "dope" for him. She confirmed this incident in writing soon after. The incident occurred in about May 2000 when the three of them were in an Area Health Service vehicle. She knew that what she had told Mr Foy would likely see both of them lose their jobs. 85 In oral evidence she conceded she told the same story to the Service's legal representatives on 18 September. However, the very next day, on 19 September 2001, in a letter to the applicant's counsel and in a phone call to Mr Foy, Ms Richardson claimed she heard no such conversation. She said she had lied, because Mr Bevan had told her she would lose her nurse's registration if she didn't say she overheard the conversation. She now realised she would not be in any trouble if she told the truth. 86 It was put to Ms Richardson that she changed her story after she was subpoenaed to give evidence knowing that she would have to give truthful evidence in the same room as the applicant and Mr Bevan. She denied this. When pressed, she said she had lied during the investigation to assist her friend, Mr Bevan. 87 Mr Bevan's evidence was that he spoke to Ms Richardson after his dismissal and told her that he had given her name as someone who would corroborate his allegations against the applicant. He told her to co-operate. He did not tell her what to say. Mr Bevan said Ms Richardson was reluctant to say anything. She didn't believe she could be compelled to, because she no longer worked for the respondent. Mr Bevan told her that they (the management) could compel her to say what she knew and threaten her with deregistration if she refused. 88 In cross examination Mr Bevan said Ms Richardson had been present on "half a dozen occasions" when the applicant had been handed his drugs or paid for them. For the Respondent 89 Mr Gordon Foy gave evidence of the meetings with Mr Bevan and the applicant on 23 January 2001. At about 8.45 am Mr Bevan called and asked to see him urgently about a matter of life and death. Mr Foy told him to come over immediately. Mr Foy said he did not know, at this point, what Mr Bevan wanted to discuss with him or that it involved the applicant. 90 Very soon after Mr Bevan's call the applicant had phoned and said he had a problem with Ken Bevan. The applicant said that he had "chipped" him over wearing open sandals. He said Mr Bevan had been to court on a drink driving charge and was upset. The applicant told Mr Foy that Mr Bevan had "lost it". Mr Foy declined to discuss the matter until he spoke to Mr Bevan. 91 The meeting with Mr Bevan was attended by Mr Gillies and Mr Freele. Mr Bevan had disclosed to them that soon after arriving at Granville, the applicant told him that one of his tasks, including during work hours was to buy his drugs from a person named Jake. He stopped doing so in December 2000, because he had cause to stop and think about it when his mother was diagnosed with Alzheimer's Disease. He had told the applicant he wasn't going to buy his drugs for him anymore. On 15 January 2001, the applicant told Mr Bevan to do as he was told. He believed this meant he had to continue buying the applicant's drugs. On 18 January they had an argument. The applicant had assaulted him and tried to choke him. Mr Bevan had consulted a doctor. Mr Bevan said the allegations could be corroborated by Tracie McMartin and Justine Richardson. Mr Bevan said he feared for his life because he had "spilt the beans". 92 Mr Bevan wrote and signed a statement. He was suspended on full pay pending an investigation. 93 Mr Foy said that Mr Gillies telephoned the police and informed senior management. Meeting with the Applicant 94 Later that day in a meeting with the applicant, Mr Foy said he was aggressive and dismissive of the allegations and said Mr Bevan was crazy. The applicant was suspended on full pay and advised not to discuss the matter with any other person. When questioned as to what this direction meant, Mr Foy said it did not mean the person could not discuss the matter with their partner, their Association or legal adviser. Similar directions were given to all the employees. Mr Foy said that this was because he was concerned there may be collusion and he wanted clear, untainted stories from each employee. 95 Mr Gillies asked Mr Foy to interview all the staff at Granville about the two incidents on 15 and 18 January. He interviewed Lyn Cox, Caroline Evans, Glenn Hughes, Polly Cameron, Jacqui Moore and Rajni Kumar. It was clear a physical altercation had occurred on 18 January. However, no one had witnessed it. There was evidence that: i) Ms Kumar heard loud and angry voices. ii) Polly Cameron described loud voices. iii) Lyn Cox heard what sounded like a scuffle and an angry voice which she believed to be Mr Bevan's. iv) Jacqui Moore said the applicant approached her and said, " the bastard tried to strangle me, look ". v) Caroline Evans heard them yelling and shouting and phoned the applicant. He said he was fine and later that " Ken's going to the doctor". 96 Mr Gillies instructed Mr Foy to interview staff again about the drug allegations. All employees interviewed denied hearing the applicant asking Mr Bevan to buy drugs. 97 Mr Foy said some employees appeared frightened. Jacqui Moore had said she was "afraid of the repercussions from David Harding". Each employee was required to provide a statement - some were in identical terms. 98 In cross examination, Mr Foy agreed that the direction to write a statement went further than Departmental policy. The policy only asked for a statement. There was no general policy in this area, but the overriding consideration was the duty of care to patients. Mr Foy did not accept that these statements might interfere with the police investigation. Mr Gillies had told him that the Police had said the internal inquiry could continue. 99 Mr Foy was closely cross examined on the investigation. He agreed that employees are entitled to be represented by their Association - certainly at a disciplinary interview. However, he said there may be circumstances when Association involvement would not be appropriate. He did not believe Association representation was necessary, when interviewing employees during an investigation and no one had suggested the Association should be involved. He agreed some of the employees, and the Association, were concerned with the process and number of interviews. Despite knowing these concerns, Mr Foy conceded that employees were re-interviewed. 100 Mr Foy was asked why not all the employee statements were attached to his affidavit. He believed they had. Nevertheless, he said all the statements had been taken into account at the time. He could not recall a statement from Ms Freeman, who had expressed a view that Mr Whatmough "had it in" for the applicant. 101 Mr Foy interviewed Justine Richardson who told him she recalled an incident in mid 2000 in which she overheard Mr Bevan and the applicant talking about buying drugs, in a Service vehicle, while on duty. She confirmed the incident in writing. 102 Mr Foy and Mr Gillies also interviewed Ms McMartin. Mr Foy said that it was appropriate to ask Ms McMartin about her personal relationship with Mr Bevan some time ago because Mr Bevan had nominated her as someone who could support his allegations. She told them that she had observed Mr Bevan and the applicant smoking a substance she believed to be marijuana. A subsequent statement from Ms McMartin omitted this reference and she was asked to include it. Mr Foy said she was not directed to write anything she had not already told him and Mr Gillies. It was crucial she write down what she originally had said. However, her written statement said she didn't know what the substance was. 103 Mr Foy rejected claims Mr Gillies was bullying, harassing or threatening towards Ms McMartin. Mr Foy accepted she was upset, but she didn't ask for a break and none was offered. Mr Foy did not believe that despite three interviews, any pressure was applied to Ms McMartin. 104 Mr Foy spoke to Mr Bevan's treating doctor who said that Mr Bevan had redness on his neck on 18 January. There were no visible hand or finger marks. After speaking to the doctor, Mr Foy believed Mr Bevan was assaulted by the applicant. 105 Mr Foy was asked about the honesty of Mr Bevan, particularly as he was seen (by Mr Whatmough) placing phone records in the bin on the day of his dismissal. He believed there was nothing particularly suspicious about this. 106 Mr Foy was present at the applicant's disciplinary interviews on 4 and 5 June 2001. He said the applicant spoke from a prepared statement and denied all the allegations. It was agreed to reconvene in two days to advise of the recommendation to be made to senior area management. 107 Mr Foy discussed the matter with Mr Freele and Mr Whatmough. It was unanimously decided that there was sufficient evidence to support the allegations against the applicant and dismissal was recommended. 108 Specifically, Mr Foy was satisfied that the applicant had assaulted Mr Bevan on 18 January and that the applicant was involved in the purchase of drugs. The applicant failed to report the alleged assault on Ms Kumar. All these matters were serious breaches of the Area Health Service's Code of Conduct. Two previous first and final warnings were also taken into account. One involved the assault of another employee. 109 The recommendation to dismiss the applicant was approved by Mr Russell Mills, Director, Clinical Management Unit and Mr Nick Gerrand, Director, Human Resources. The applicant was dismissed with two weeks' notice. 110 Mr Graeme Whatmough's evidence dealt primarily with the disciplinary interviews on 4 and 5 June 2001. Mr Whatmough was on leave between 19 January and 5 February. He recalled a phone conversation with the applicant on 18 January in which the applicant did not mention a physical altercation with Mr Bevan on that day. Mr Whatmough examined the phone records of the applicant (three times) against the information provided by Mr Bevan. The calls to the numbers said to be Jake's were for short periods. The calls matched what Mr Bevan had said, in that the applicant would call the drug dealer shortly before Mr Bevan went to purchase the drugs. Mr Whatmough conceded that the majority of all the applicant's phone calls were for short periods and fitted a general pattern. Nevertheless, Mr Whatmough believed there was sufficient evidence to prove the allegation of drug dealing. 111 Mr Whatmough said he saw Mr Bevan putting phone bills in the bin on the day he was dismissed. He did not regard this as suspicious, as Mr Bevan was putting everything in the bin including papers, note pads etc. 112 Mr Whatmough was concerned that the applicant had not reported serious incidents involving Mr Bevan. He said the applicant had an obligation to do so, particularly as he had reported them to the police. 113 Mr Whatmough deposed that even without Ms Richardson's evidence, the failure to report serious matters was sufficient to justify dismissal. It was not, in his view, appropriate conduct for any employee - let alone a team leader. 114 The respondent also considered the first and final warning Mr Whatmough had issued to the applicant in 2000. No weight, however, was given to allegations about alcohol consumption during work hours. 115 Mr Whatmough was cross examined about his relationship with the applicant, who he had supervised since August 1998. Mr Whatmough had disciplined him in 2000. Mr Whatmough was asked if he had numerous disagreements with the applicant. He referred to incidents involving an exercise group conducted by Jacqui Moore and the general management of staff under the applicant's supervision. He deposed that he had no personal problems with the applicant. 116 Mr Whatmough was aware that staff had been interviewed more than once. He was aware there were concerns from staff about two main issues - that the allegations were a police matter and that staff didn't feel they should be interviewed more than once. He added that some employees complained about the attitude of the interviewer (Mr Gillies). 117 Mr Kevin Freele was Director of the Greater Parramatta Mental Health Service. He participated in the meetings with Mr Bevan and the applicant. 118 On 23 January, Mr Freele met Mr Bevan with Mr Foy and Mr Gillies. Mr Freele said that Mr Bevan had told the meeting his mother had a neurological problem and he was concerned he might too. He corroborated Mr Foy's version of this meeting with Mr Bevan. Mr Freele formed the view that Mr Bevan believed he may have, in some way, been protected as a "whistleblower" and appeared angry when he was told he had incriminated himself. 119 Mr Freele was closely questioned as to his clinical diagnosis of Mr Bevan. (Mr Freele holds a Bachelor of Psychology, Master of Social Work and had twenty-three years' experience in the field of psychiatry). He accepted he was not a psychiatrist, or a registered psychologist. His professional observations of Mr Bevan on the day were that he appeared anxious, but not psychotic or delusionary. 120 In another interview the same day, the applicant had said, "you can't believe Ken - he's crazy". Mr Freele said from his memory, Mr Foy and Mr Gillies and himself had discussed what the applicant had said in the meeting. These were the words the applicant used. Mr Freele expressed concern that the applicant had never raised with management the serious matters he accused Mr Bevan of. He wrote to the applicant confirming his suspension on pay and directing him not to discuss the matter with any other parties. 121 Mr Freele deposed that he was concerned with the allegations and that the police should be notified. Mr Freele said he contacted the police and spoke to a Detective Sharkey. Some time later, the Detective rang back and said there was insufficient material to launch a police investigation and the file would be referred to Castle Hill Police. 122 Mr Freele wrote to Castle Hill Police identifying the phone numbers Mr Bevan had identified as belonging to a well known drug dealer, named "Jake". He sought police assistance. Apparently, no reply was ever received from the police. 123 Mr Freele wrote to the applicant on 5 March setting out the allegations in detail. The letter required his attendance at a disciplinary meeting the next day and directed him not to discuss the matter with any person mentioned in the letter or attachments. In cross examination, Mr Freele said the direction meant any person connected to, or related to, the matter. It did not mean he couldn't speak to his partner, industrial or legal adviser. However, Mr Freele did not accept that talking to a friend was appropriate. Mr Freele expressed concern that, despite being directed not to speak to anyone, the applicant, on his own admission, had spoken to Peter Taylor who Mr Bevan claimed was really "Jake". 124 Having regard to Mr Bevan's statement, Ms Richardson's statement, the phone calls and Ms McMartin's statement, Mr Freele considered the drug allegation - on the balance of probabilities - had been proven. Despite Ms Richardson's belated change of mind, he believed it would not have changed his decision. 125 Mr Freele took account of Ms Moore's statement of the 18 January incident. She said Mr Bevan had told her "look, the bastard tried to strangle me". Account was also taken of the doctor's observation of redness on Mr Bevan's neck but no finger marks. 126 Mr Freele said he considered the conflicting accounts, the doctor's assessment and other employee statements of an incident. He formed the view that the assault occurred. He was concerned the applicant had not reported the incident. 127 Mr Freele formed the view that the serious allegations against the applicant had been made out. His conduct was unacceptable. Account was also taken of two earlier warnings. Mr Freele believed that the applicant's employment could not continue as the respondent could not have any confidence in him. 128 Mr Freele accepted that the Area had six hundred registered nurses with four hundred and fifty staff at Cumberland Hospital. However, he believed it would be impractical to re-employ the applicant. SUBMISSIONS 129 Counsel for the applicant referred the Commission to the relevant authorities in relation to the standard of proof in civil matters (Briginshaw v Briginshaw (1938) 60 CLR 336 and Wang v Crestell Industries Pty Ltd 73 IR 454) summary dismissal and onus of proof (Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70; Franklins Ltd v Webb, 72 IR 257), the effect on an employee of summary dismissal (Standley v Electronics Boutique Australia Pty Ltd (unreported, Sams DP, IRC4516 of 1998, 18 March 1999 and Hill v Department of Juvenile Justice (unreported, Sams DP, IRC6474 of 1999, 27 July 2000) and issues of procedural fairness. 130 Mr Dawson accepted the Commission's observation that this case will be largely decided on a finding of witness credit as between the obvious conflict of evidence between the applicant and Mr Bevan. 131 Mr Dawson submitted that, notwithstanding the respondent may have been misled by certain witnesses (Ms Richardson, in particular), it was the respondent's attitude to the disciplinary investigation which resulted in it being misled. 132 The respondent had decided, from the outset, that because Mr Bevan had brought forward self incriminating allegations, he must be telling the truth. With this mindset, the respondent embarked on an "extraordinary process of investigation" designed to validate its view. The investigation involved interviewing all employees three or four times, directing them not to discuss the matter with anyone and demanding written statements without being able to consult their Association. Such an investigation was extreme and unfair, particularly as it involved a criminal investigation. Many of the employees felt threatened and were very concerned. Others were distressed by the manner of Mr Gillies' interrogation. 133 Mr Dawson accepted that the applicant did not report incidents, such as the altercations with Mr Bevan or Ms Kumar's harassment allegation. However, this was explained by the applicant's evidence of his difficult working relationship with his superiors and having been told to "look after his own backyard". If he be criticised for these failures, Mr Dawson submitted that reinstatement to a non managerial position would still be appropriate. The applicant's nursing skills had never been questioned. 134 Mr Dawson dealt comprehensively with the conflict of evidence in the respondent's case. He referred to differences between Mr Foy and Mr Freele as to what they knew before they first saw Mr Bevan on 23 January 2001. 135 Mr Dawson dismissed Mr Bevan as a witness of credit by highlighting the changes in his evidence over two days of oral testimony. For example, Mr Bevan deposed that he told the applicant in December 2000 that he would no longer buy his drugs for him. He said the applicant never asked again. Yet he told the employer, on 23 January, that the altercation with the applicant on 18 January, arose from his refusal to buy the applicant's drugs. Mr Bevan's evidence of the 18 January altercation was unbelievable and inconsistent. There was no evidence of finger or thumb prints on his neck, consistent with being choked and lifted from a chair by the neck. 136 Mr Dawson pointed to a range of dates given by Mr Bevan as to when he last smoked marijuana - November/December, 2000 and January/February, 2001. 137 Mr Bevan's evidence of information passed to the police about "Jake" and Jake's home was extraordinary. There was no evidence of any police investigation. 138 Ms McMartin and Ms Richardson's evidence had a degree of similarity which makes Mr Bevan's account of what he said to both of them not to be believed. In any event, Mr Bevan's behaviour, in signing in as Ken "Hitler", sharpening axes on duty and wearing sunglasses indoors, demonstrates Mr Bevan to be a witness whose evidence is not reliable. 139 Mr Dawson said that having decided to dismiss the applicant, the respondent then took a "scatter gun approach" by making numerous other allegations. The respondent even sought to involve itself in the criminal investigation. Mr Dawson said there was simply not sufficient evidence to prove the drug allegations and the applicant's dismissal was a "huge overreaction". 140 By contrast, Mr Dawson submitted that the applicant had adopted a sensible approach to his claim. The applicant recognised the difficulty of reinstatement to the Granville Rehabilitation Service. Re-employment would be appropriate to a position where he might be more closely supervised. Mr Dawson pressed the practicality of such reinstatement and referred the Commission to Perkins v Grace Worldwide (Aust) Pty Ltd, 72 IR 186; NSW Public Service Professional Officers Association v Forestry Commission (NSW) 39 IR 46 and Oswald v NSW Police Service 90 IR 42. 141 Mr Newall, for the respondent, submitted that the Commission could be well satisfied that, on the balance of probabilities, the allegations against the applicant had been proven. Notwithstanding such a finding, the onus still rests with the applicant to establish that his dismissal was "harsh, unreasonable or unjust". The applicant had not done so. 142 It was relevant, Mr Newall submitted, to take account of the nature of the applicant's employment and his duty of care to mentally ill patients as a supervisor. See Macleay Valley Health Service v Jeffree 58 IR 187. The duty of care was rated "very highly" by the respondent and acknowledged by the applicant through the Code of Conduct. The applicant had accepted that he was required to report breaches of the Code by other employees. The respondent had proved that the applicant had failed to report: i) arguments between himself and Mr Bevan; ii) an alleged sexual assault of a female employee by Mr Bevan; iii) that Mr Bevan had purchased a handgun; iv) that Mr Bevan had murdered a woman and buried the body in Wollongong; v) that Mr Bevan was suffering amphetamine psychosis. 143 The respondent had also proven, to the requisite standard, that the applicant had instructed Mr Bevan to purchase drugs for him during work hours using a work vehicle - a clear and fundamental breach of his duty of care (see Macleay Valley Health Service v Jeffree). 144 Mr Newall put that the termination of employment should be considered in the context of a final warning the year before, and a final warning in 1994 related to the assault of another employee. 145 In respect to conflicting evidence, Mr Newall submitted that Mr Bevan's evidence should be preferred. This was so because Mr Bevan: i) had given an account to Mr Freele and Mr Gillies, consistent with what he had told the Commission; ii) was subject to rigorous cross examination. His evidence was clear and concise and given without any legal advice; iii) had made significant concessions against his own interests in respect to his criminal record and drug use and the purchase of drugs; iv) had twenty years' nursing experience; v) gave evidence corroborating that of other witnesses, while being unaware they had given such evidence; vi) had come forward in the belief that the threat to kill him would be more difficult to be carried out; vii) gave recollections which were very detailed; viii) gave evidence that was corroborated by other witnesses. For example, after the altercation on 18 January, Ms Moore and Dr Fernando saw redness on Mr Bevan's neck. The applicant had denied touching him at all. Witnesses recall loud voices of both the applicant and Mr Bevan during the altercation. 146 Mr Newall submitted that this is not a case of two witnesses offering honest, but different accounts. Rather, if the applicant's version of events is to be believed, Mr Bevan's entire evidence must be a complete fantasy - this can't be right having regard for Mr Bevan's demeanour, the nature of his evidence and corroborative evidence. 147 Mr Newall contrasted Mr Bevan's evidence with that of the applicant. The applicant denied everything. His evidence was inconsistent and unpersuasive. For example, the applicant believed Mr Bevan was irrational and suffering amphetamine psychosis, yet he provided him with a "splendid" reference. 148 Mr Newall submitted that the applicant's denials of the drugs allegations can not be believed. Mr Bevan gives a detailed and corroborated account of his own and the applicant's drug use. Yet the applicant denies it all. Ms McMartin changed her statement, by firstly saying she believed they were smoking marijuana, then that she couldn't be sure if it was marijuana. In the proceedings, she says they were smoking a "joint". The Commission could be well satisfied that Ms McMartin did see them smoking marijuana. The result is the applicant was not telling the truth and was not likely to be telling the truth about other drug related matters. His denials of using the respondent's phone and vehicle to arrange his drug purchases, similarly, should not be accepted. 149 The applicant could bring no supportive evidence to discredit Mr Bevan. Mr Taylor ("Jake") was an obvious example. While the applicant believed Mr Bevan to be crazed, not one of his fellow employees was called or subpoenaed, including two female employees who the applicant said were frightened by Mr Bevan. The Jones v Dunkel ((1959) 101 CLR 298) rule was to be inferred. 150 The applicant's reason for only going to the police after Mr Bevan's allegations were raised, was preposterous. Mr Newall said it was only designed to discredit Mr Bevan in the eyes of the respondent. 151 Even on his own evidence, the applicant was grossly derelict in his duty of care. 152 The respondent, Mr Newall submitted, was entitled to have regard for two previous final warnings, one involving choking a fellow employee and, the other, for an outburst of temper. These incidents disclosed a consistency of violent behaviour. 153 Mr Newall dealt with criticism of the investigative process. 154 Mr Newall submitted that, notwithstanding the reluctance of some employees to co-operate, the respondent had an obligation to fully and comprehensively investigate the matter. It had done so. There was, and can be, no complaint that the applicant was denied due process. There was no suggestion the respondent, in light of the evidence it had before it, did not give careful consideration to the allegations. 155 Mr Newall submitted that, if there be criticism at all, it was about the process of interviewing other staff during the investigation. 156 While there was some criticism of Mr Gillies for his manner in the interviews, Mr Newall said this was a side issue. Importantly, no one put that what the witnesses said in the interviews, or in their statements was untrue, including those of Ms McMartin. 157 Mr Newall submitted that while faults in the procedure were a matter the Commission can take into account, it is not, of itself, determinative of a finding of unfairness (see Burke v McGirr 87 IR 54). The gravity of the misconduct will overshadow procedural considerations (see Wang v Crestell Industries Pty Ltd and Byrne & Anor v Australian Airlines (1985) 185 CLR 10). 158 Mr Newall said the Commission would be troubled by Ms Moore's statement which, when "reviewed" by the New South Wales Nurses' Association had certain material deleted which was adverse to the applicant's interests. 159 If there be any criticism of the investigation, Mr Newall said it should be directed to the Association for it's part in "reviewing" employee statements. One would be concerned that employees, after consultation with their Association, provided identical statements - even to the extent of spelling mistakes. 160 As to Ms Richardson's inconsistent statements, Mr Newall said the respondent was entitled to have regard for the first account she gave. Her story only changed days before the hearing. Her reasons for doing so were implausible. In any event, the respondent gave unchallenged evidence that Ms Richardson's statement was not determinative of the matter. 161 As to remedy, Mr Newall said that the application should be dismissed. However, if the Commission was able to make findings only on the applicant's dereliction of his duty of care, these matters were serious enough to make reinstatement or re-employment impractical. Further, the applicant's previous conduct and Ms Moore's expression of being "afraid of repercussions from David Harding", stand against the reestablishment of the employment relationship. The evidence of Mr Foy, Mr Freele and Mr Whatmough on the practicality of reinstatement or re-employment is particularly relevant. It should be accepted. In reply 162 Mr Dawson submitted that the Jones v Dunkel point made by Mr Newall was no more than at attempt to shift the evidentiary onus for proving the allegations, back on the applicant. It was not for the applicant to bring witnesses to disprove the allegations, but rather for the respondent to bring evidence to prove them. The onus cannot be shifted back. 163 Mr Dawson queried whether Mr Bevan had given evidence without any legal advice. It was apparent he had at least two conversations with counsel for the respondent. In any event, he was "smug and arrogant" in the witness box. His evidence proves nothing. 164 Mr Dawson said the record of the applicant, if it is to be taken into account, was to be likened to Mr Bevan's record of criminal assault and malicious damage. 165 As to the commotion associated with the altercation on 18 January, Mr Dawson said the overall picture of the evidence is that Mr Bevan was making the majority of the noise. 166 As to the criticism of the New South Wales Nurses' Association, Mr Dawson said it was never made by the employer. Moreover, the respondent merely suggested that the witnesses got together and wrote similar statements. Mr Dawson submitted the Association was protecting its members' interests because the respondent had failed to. Because of the criminal investigation they had a right to silence. The respondent failed to acknowledge this right. 167 Mr Dawson submitted that the respondent's view of the applicant was formed from an unfair process. 168 Mr Dawson redirected his submissions to re-employment of the applicant. He said there was no evidence the applicant could not provide an appropriate level of care for his patients. His failure to report Mr Bevan was because he gave him the benefit of the doubt. 169 Mr Dawson put that Ms Richardson was a witness of credit and her later statement was the correct one. He said that just because a person decides to tell the truth it should not, on the face of it, be held against the witness. Her demeanour in the witness box was such as to demonstrate the truth of her last position. CONSIDERATION 170 Two important procedural matters were raised during the proceedings. It is appropriate for the Commission to comment on them. Privilege of Documents 171 Prior to the commencement of the hearing, Mr Newall called on a summons for production served on the New South Wales Nurses Association and returnable on 27 September 2001. The summons sought the following: All documents whether is(sic) hard copy or electronically stored, including but not limited to notes, file notes, memoranda, letters, diary notes, statements, or records of statements made by any person, relegating(sic) to the allegations made against Harding, the inquiry into these allegations by the Area Health Service including the conduct of that enquiry, the dismissal of Harding and the dismissal of Bevan. 172 Mr Dawson objected to the production of material broadly characterised as file notes of the Association. He relied on Rule 186(7) by claiming, on special grounds, privilege of documents prepared for, by, or communicated between the Association's officers - some of whom are legally qualified. 173 He submitted that the test of special grounds was met by the circumstances of Association members having their communications with the Association exposed, whereas non-Association members communications with legal representatives are protected. Mr Dawson argued that the Association's advice given to Mr Bevan and the applicant might disadvantage the applicant in these proceedings. It was also relevant to appreciate the meticulous record keeping of the Association, which includes records of what one officer says to another. 174 Mr Newall, not surprisingly, opposed the grant of privilege. He said that it is not good enough to assert that it is unfair on a union to disclose its advice, or provide documents. Special grounds must be made out. He submitted that the use of the word "special" must mean "unusual" or "unique". He relied on McLeay C's discussion of special circumstances in Andric v Franklins Ltd [2001] NSWIRComm 1001 (11 January 2001)]. 175 Mr Newall contended that if the disputed material was privileged it would make a mockery of the rule. The result would be that all documents of this kind, in s84 matters or s130 disputes would be also privileged. This could not have been Parliament's intention. 176 Mr Newall submitted that the fact officers of the Association may be legally qualified is not relevant, as the rule says nothing about it. In any event, documents relating to Mr Bevan have nothing to do with the advice given to the applicant. 177 Mr Dawson replied that the rule should be interpreted in light of the Commission's general obligations under s163 of the statute, "to act according to equity and good conscience." 178 The Commission thereupon ruled against Mr Dawson and refused privilege. I now provide reasons for my ruling. 179 Rule 186(7) is on the following terms: The Commission may, on special grounds, allow a claim on grounds of privilege for documents prepared for or by, or communications with, an industrial advocate or an officer or employee of an industrial organisation, if privilege would be accorded those same documents or communications had the advocate, officer or employee been a legal practitioner. 180 It seems to me that the key to whether privilege should be granted to the disputed material is for the Association to satisfy the Commission that there exists "special grounds" for it to do so. 181 In my view, it is irrelevant that the Association officers are legally qualified. That is not what the rule says, or implies. 182 It follows then, that the onus rests with the Association to establish "special grounds". This requires an assessment of whether the grounds claimed meet the definition of "special" as it is generally understood. 183 Assistance in this regard was given by Mr Newall by reference to Andric v Franklins Limited wherein the learned Commissioner said at p2. I am satisfied that it means, at its lowest reading, not usual, or being circumstances which would distinguish this case from other such applications which might fall within the section. It implies a responsibility on the Commission of a higher level than the discretion available under s85(3) to accept an application for a claim for unfair dismissal, which is made out of time. 184 Further assistance to the definition as "special" can be found in Crown Employees (State) Award No. 2, 52 IR 376: In our view, the special cases section of the principles provides a mechanism whereby a claim for enhanced wages or conditions beyond those normally allowed under the principles may be brought before the Commission. The hearing of such a claim is to be conducted by the Full Commission (formerly the Commission in Court Session) thus emphasising the special nature of the case. It will be a matter for the Full Commission, after hearing the evidence and submissions, particularly relating to the matters relied on to take the case "out of the ordinary" and thus to make it "special", to decide whether the claim, in part or in whole, should succeed. 185 In my opinion, the establishment of special grounds must comprehend a case which is "out of the ordinary" or "not the usual run of the mill." 186 Mr Dawson put no more than Union members generally would be disadvantaged over non-Union members in regard to privilege applying to their respective advisors. This in itself, it was said, is what made it special. I do not agree. I cannot see how this general observation (even if it be right) can fit within the Rule requiring the satisfaction of special grounds in a particular case. 187 In other words, nothing was put in this case to distinguish it from other cases involving Unions and their members. Therefore, the Association's claim of privilege over the disputed material must fail. Section 128 of the Evidence Act, 1985 188 The second matter concerned Mr Newall's application for the Commission to issue a certificate pursuant to s128 of the Evidence Act, granting privilege to Mr Bevan in respect to self-incrimination. 189 Mr Newall submitted that, while the Commission is not bound by the strict rules of evidence, it was open for it to issue such a certificate as the Commission was a court as defined under the Act, as "a body authorised by an Australian law or by consent of parties, to hear, receive and examine evidence" (paragraph (e) of the definition). The reason for the application was that it was expected Mr Bevan would give self incriminating evidence of being involved in a criminal act which attracts a penal sanction. The effect of the certificate would allow him to give his evidence freely and under privilege (s128(7) of the Evidence Act ). 190 Mr Dawson, while not opposing the application, submitted that the Commission should know directly from the witness, the reasons why a s128 certificate should be issued. In view of the police investigation that was said to have occurred, Mr Dawson put that it was unknown if the witness had already incriminated himself by providing a statement to the police. 191 Section 128 of the Evidence Act 1985 is in the following terms: 1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness: a) has committed an offence against or arising under an Australian law or a law of a foreign country, or b) is liable to a civil penalty 2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness: a) that he or she need not give the evidence, and b) that, if he or she gives the evidence, the court will give a certificate under this section, and c) of the effect of such a certificate. 3) If the witness gives evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence. 4) The court is also to cause a witness to be given a certificate under this section if: a) the objection has been overruled, and b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. 5) If the court is satisfied that: a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and c) the interests of justice require that the witness give the evidence, The court may require the witness to give the evidence. 6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence. 7) In any proceeding in a NSW court: a) evidence given by a person in respect of which a certificate under this section has been given, and b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, Cannot be used against a person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. 8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: a) did an act the doing of which is a fact in issue, or b) had a state of mind the existence of which is a fact in issue. 9) A reference in this section to doing an act includes a reference to failing to act. 192 It seems plain enough from subsection 1 of the Act that the issuance of a s128 certificate only arises if the witness objects to giving evidence. Mr Bevan was called to give evidence and the following exchange occurred: Newall: Q. Your name is Kenneth Bevan? A. Yes Q. And you are at Bundilla Avenue, Winston Hills? A. Yes Q. And you attend the Commission today having received a subpoena to attend? A. I have been subpoenaed, yes. Q. It is on that basis that you attend the Commission, that you have been subpoenaed? A. Yes Q. You understand you are here to give evidence about certain events which occurred within the Western Sydney Area Health Service and surrounding that service in the period 1997 to 2001? A. Yes Q. You understand that you may be asked to give evidence about matters, particularly things that may tend to prove that you personally have committed an offence under an Australian law? A. Yes Q. You should understand that you have the ability to object to giving that evidence notwithstanding you are under subpoena. So I ask you: do you object to giving evidence about matters, which may tend to prove that you have committed an offence under Australian Law? Do you understand the question? A. Yes. You want me… Q. Can I be quite frank with the witness? His Honour: Yes. Newall: Q. You are here under subpoena, and to that extent you have attended the court and answered the subpoena, it is the subpoena that compels you to attend but you are not - if your Honour thinks I am being too frank your Honour can stop me. I would like to put that to him squarely. Notwithstanding you are under subpoena you have a free will of yours to object to giving evidence that might tend to prove that you gave evidence. Understand you will be asked questions that might tend to prove that you had committed an offence under Australia law. Do you understand? A. (Witness shook head) Q. I am asking whether you object to giving evidence of that kind or not? A. No, I don't object. 193 As can be seen from this exchange, ultimately the Commission was not required to consider issuing Mr Bevan with an s128 certificate. However, I consider it appropriate to make some general observations about this issue, particularly as I consider the Commission has no power to do as Mr Newall contended. 194 There are three definitions relevant to whether the Commission is a "court" for the purposes of the Evidence Act 1985. Mr Newall relied on the definition of an Australian court as: a) The High Court b) A court exercising federal jurisdiction, or c) Court of a State or territory, or d) Judge, justice or arbitrator under an Australian law, or e) A person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence, or f) A person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence. He said paragraph (e) relevantly applied to the Industrial Relations Commission of New South Wales. 195 However, Mr Newall's reliance on this definition is misplaced. One must rely on the definition of a "court" not an "Australian court" to establish whether the Commission is a "court" for the purposes of the Evidence Act. A "New South Wales court" is defined as: a) the Supreme Court, or b) any other court created by parliament, (including such a court exercising federal jurisdiction) and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence. 196 In my view, the use of the expression "is required to apply the laws of evidence" determines the question conclusively. The Commission (as distinct from the Commission in Court Session) is not bound by the rules of evidence (s163(1)(b)). It cannot, therefore, be a court for the purposes of the Evidence Act 1985. 197 It follows that the Commission would not have the power to issue a certificate of privilege under s128 of the Evidence Act 1985. Relevant Principles in Summary Dismissal Matters 198 I turn now to discuss the relevant principles to be applied to the merits of this case. 199 While the facts and circumstances disclosed during the proceedings were exceptional and extraordinary, this case, nevertheless, involves a classic example of summary dismissal for misconduct. 200 Viewed in this way, the usual principles the Commission is to have regard to are well known and well settled. It is pertinent to refer to these principles. 201 In some cases of summary dismissal the employee will contest the allegations which led to the employer's decision to terminate the contract of employment. In these cases, the employer is required to prove the allegations. The Commission must be satisfied that the employer's onus to do so has been discharged and make findings, on the balance of probabilities, that the misconduct occurred. 202 The oft quoted authority for this proposition is found in Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principles to regard fault as a particular exception defeating the right only when alleged and proved. The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority 203 See also other Full Bench authority on the subject in Wang v Crestell Industries; Shop Distributive & Allied Employees' Association v Jewel Food Stores, 22 IR 2; Franklins v Webb and Bigg & Anor v NSW Police Service 80 IR 434. 204 In other cases, the employee will admit to the misconduct, but will argue that the penalty of dismissal was too harsh. In this regard I refer to Electricity Commission of New South Wales t/as Pacific Power v Crump 48 IR 296: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal . The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (Our italics) See also Busways v Johnson 55 IR 255, Byrne & Anor v Australian Airlines and my comments in Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8. 205 It is obvious that the summary dismissal of an employee for misconduct can have serious, long term implications for an employee. It is for this reason that the Full Bench in Franklins Ltd v Webb reminded employers of the need to be fully satisfied that the misconduct had been committed and that such conduct justified dismissal. The Full Bench said at p261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. See also my comments in Standley and Electronics Boutique ; Hill v Department of Juvenile Justice and Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council [2001] NSWIRComm 91. 206 In Hill v Department of Juvenile Justice serious allegations concerning the supply of drugs to juvenile offenders by a person in charge of their welfare were the reasons for the employee's dismissal. The allegations had no basis and were not proven. I said at para 62-63: 62 In Standley v Electronics Boutique Australia Pty Ltd , IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects. A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future. See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten , IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia , IRC5224 of 1998, 10 September 1999. 63 The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so. 207 The Commission does not underestimate the seriousness of a finding of gross misconduct against a registered nurse in these proceedings. Such a finding will have adverse implications for the applicant's nurse's registration and his capacity to secure alternative professional employment in the future. 208 These considerations no doubt weighed heavily on the respondent when it made the decision to dismiss the applicant. It is a burden which weighs heavily upon me. 209 Even so, it is a strange case indeed where, as is here, on the applicant's own version of events, the Commission would be disinclined to intervene in the respondent's decision to dismiss him. This is so for the following reasons: 210 The applicant's evidence was that Mr Bevan: i) claimed to have murdered a woman and buried her body. (In oral evidence, the applicant said he believed Mr Bevan had murdered two people); ii) was suffering from a drug induced psychosis; iii) made claims of being on a 'hit list' to be murdered; iv) had purchased a handgun; v) had sexually assaulted a female employee. 211 These were, to say the least, bizarre and extraordinary claims - yet the applicant reported none of them to anyone - not until of course, he became aware of Mr Bevan's allegations against him. I shall say more about this later. 212 Notwithstanding these incredible claims, was the applicant's acknowledgement of the physical altercation he had with Mr Bevan on 18 January 2001. Again, the applicant informed no one in management about it. In my opinion, he had a duty and obligation to do so. 213 His failure to report these matters must be viewed in light of the working relationship between the applicant and Mr Bevan. The applicant was Mr Bevan's immediate superior. Mr Bevan was caring for mentally ill patients. Viewed in this context, the best one could say about the applicant's evidence was that it revealed a team leader in fundamental breach of the Department's policies and the Code of Conduct, and derelict in his duty of care to his patients. To my mind this was sufficient justification, of itself, for the applicant's termination of employment. 214 On any view of it, I reaffirm that the applicant's own evidence provides no basis for this Commission to intervene in the decision of the respondent to dismiss him. However, in my opinion, the applicant's misconduct went much further than that to which I've just referred. 215 Having observed the applicant and Mr Bevan in the witness box and reviewed their conflicting evidence, the Commission has formed the view that Mr Bevan's evidence is to be preferred. The corollary of this finding is self evident. 216 I have come to this view, having regard, inter alia, for the following matters: 1) Mr Bevan had nothing to gain, and a lot to lose, by revealing his drug dealing to management. He knew he would likely lose his job. He said he expected to be sacked. He knew he was incriminating himself in a criminal act, both in his admissions to the respondent, and in evidence on oath before the Commission. 2) Mr Bevan's explanation for coming forward with his allegations is plausible. He had reason to fear the applicant and said he was threatened by him on 15 January 2001. Indeed on the day he went to management (21 January), he rang his Association and said someone was wanting to kill him and drugs were involved. Ms Keenan gave evidence that later that day she spoke to Mr Bevan who said " I've been assaulted by my NUM Dave Harding, because I stopped getting drugs for him" . 3) Mr Bevan maintained a consistent version of events from what he told the respondent in January 2001 to his evidence before the Commission. He was warned his evidence would be an admission of criminal conduct. He willingly repeated, on oath, all that he had told the respondent. 4) Mr Bevan was able to recall in detail, times, dates and particulars of incidents ten months earlier and which were uncontroversial. He did so without notes, preparation or the benefit of legal advice. Viewed in this way, it seems unlikely Mr Bevan was mixing truth with fiction. 5) Mr Bevan gave his evidence calmly and lucidly. Despite his previous habitual drug use, he gave responsive answers and was not evasive or unsure. There were no serious inconsistencies in his evidence such as to call into question the reliability of his overall evidence. 6) Mr Bevan gave evidence that his diaries had disappeared after his work locker had been emptied by person/s unknown. He could not say who was responsible, but believed it was the applicant. There is a strong motivation for any record of Mr Bevan's relationship with the applicant to have been removed by the applicant, or on his behalf. 7) Mr Bevan's evidence was that he visited the applicant's home two or three times a week. The applicant said he visited once and he went to Mr Bevan's home a couple of times. Mr Bevan's testimony was corroborated by Ms McMartin - a witness called to support the applicant. 8) The evidence of Ms McMartin was that the applicant and Mr Bevan were friends. The applicant acknowledged he had known Mr Bevan for fifteen years and was on the interview panel of two who appointed Mr Bevan to the Granville Rehabilitation Service. 9) Ms McMartin initially told Mr Foy and Mr Gillies that she saw the applicant and Mr Bevan smoking marijuana. The applicant denied ever smoking marijuana with Mr Bevan. When nothing appeared at all in Mrs McMartin's statement about smoking, she changed her statement to record that it " appeared to be marijuana ". She said she did so only after pressure from the employer. In oral evidence Ms McMartin was asked if they were smoking a " bong". She answered " no, it was a joint ". I do not accept Mrs McMartin's evidence. She knew what the men were smoking. It was marijuana. In my view, it was more than likely that the two friends were sharing a common passion for smoking marijuana. 10) Ms McMartin's attempt to discredit Mr Bevan with her evidence that Mr Bevan told her to say to Mr Gillies " whatever they say, say yes" seems highly improbable. She did not tell Mr Foy the truth as to the last occasion she had seen Mr Bevan, nor did she inform him of the nature of her relationship with Mr Bevan. 11) I do not accept Ms Richardson's belated admission that she did not overhear the applicant and Mr Bevan discuss purchasing drugs. In my view, such an admission, made many months after her initial statement, does not stand up to scrutiny, particularly as her stated reason for doing so is implausible. In any event, I accept the respondent's evidence that Ms Richardson's recanted evidence would not have altered it's decision to dismiss the applicant. 217 On the other hand, there are too many inconsistencies, coincidences and improbabilities in the applicant's evidence to give me any confidence that he is to be believed on matters of crucial conflict. I refer to some of these matters: 1) The applicant accused Mr Bevan of sexual harassment of Ms Kumar. He said Ms Kumar told him that Mr Bevan licked her leg on 9 January 2001. Strangely, there was no complaint by Ms Kumar to anyone else and no record taken of the incident or it's reporting. What is more curious, is a statement made by Ms Kumar on 9 February 2001, in which there is no mention of this incident. In my opinion, it simply did not take place. 2) The conflict in the evidence as to the altercation on 18 January is resolved by corroborative evidence supporting Mr Bevan's account. The applicant said he had not grabbed the applicant's throat and had not been shouting. The applicant said he did not touch Mr Bevan. Ms Moore saw redness on Mr Bevan's throat after the incident and Mr Bevan told her that the applicant grabbed him by the neck. Mr Bevan's doctor observed redness on Mr Bevan's neck. The applicant's behaviour is consistent with an incident in 1994 where he grasped a fellow employee around the neck. (The applicant's statement of this incident acknowledges he grabbed Mr Chiu after an argument). At the very least, the applicant's claim of not even touching Mr Bevan can't be true. Rather, I accept that a violent altercation occurred in which Mr Bevan was assaulted by the applicant. 3) One might reasonably query why the applicant provided a glowing reference for Mr Bevan at a time when he believed Mr Bevan was suffering amphetamine psychosis? It simply doesn't make any sense - except if it was designed to keep Mr Bevan quiet. 4) A number of fellow employees were named by the applicant as persons who would support his case. None were brought forward. One might draw the inference that their evidence would have been unhelpful to the applicant's case ( Jones v Dunkel ). I do not accept Mr Dawson's analysis that the Jones v Dunkel inference was an attempt to shift the onus for proving the allegation back to the applicant. With respect, this analysis is wrong. Such inferences are able to be applied to any witness not brought to give evidence in a proceeding. It does not alter the employer's evidentiary onus to prove the allegations. 5) The applicant gave evidence that the phone number which Mr Bevan described as being " Jake's " was in fact a mate, named Peter Taylor. It is rather odd that a person described as a mate was not called to give evidence to help his mate. His evidence, assuming it was accepted, would have demolished Mr Bevan's primary drug allegations. 6) It can be no coincidence that the applicant on 23 January 2001, reported Mr Bevan's alleged confession of murder to the police. This was soon after Mr Bevan had reported the applicant to the respondent. The applicant had known of this murder claim for over twelve months. Why would he now report it to the police? In my view, the reason is obvious. The applicant was constructing a case against Mr Bevan designed to convince the respondent Mr Bevan was mad and unstable and his allegations against the applicant were pure fantasy. 7) The applicant's own witness, Ms McMartin, gave evidence directly in conflict with the applicant. The applicant denied ever smoking marijuana with Mr Bevan. Ms McMartin said she saw them smoking " a joint " (T.p77). She told Mr Foy and Mr Gilles in March 2001 she had seen them smoking marijuana and then later, she said it appeared to be marijuana. 218 In my opinion, there was a patently obvious motivation for the applicant's incredible allegations against Mr Bevan. He believed that if he could demonstrate that Mr Bevan was unstable, irrational and prone to fantasy, no one in management would take Mr Bevan seriously and would dismiss his allegations against the applicant as nonsense. The applicant didn't expect Mr Bevan would be believed. 219 Indeed, in the applicant's seven page response to the allegations dated 18 March 2001, he concludes by saying: I remain under the impression that Mr Bevan is currently mentally unstable, possibly following the use of amphetamines and this instability has led him to this course of action (Mr Bevan reporting him to management). 220 It also seems to me that even if the applicant believed he should have reported Mr Bevan to management, he did not do so for fear that Mr Bevan might retaliate by informing on him. This would explain the applicant's willingness to provide Mr Bevan with a glowing reference at the time he believed he was suffering amphetamine psychosis. 221 I find the allegations numbered 1, 2, 3 and 6 in the letter of dismissal proven. Procedural Fairness 222 The expression "procedural fairness" appears nowhere in the statute. Nevertheless, the matters the Commission may take into account when determining an unfair dismissal claim are identified in s88 of the Act. These matters include, but are not limited to, whether: i) a reason for dismissal was given; ii) any reason given had a basis in fact; iii) an applicant was given an opportunity to make out a defence or give an explanation of his or her behaviour; iv) any warning of unsatisfactory performance was given; v) the applicant sought, but was refused reinstatement or re-employment. 223 It is pertinent to note that these matters are discretionary and the Commission may take other relevant matters into account (s88(f)). 224 I would observe that in cases involving summary dismissal for misconduct, particularly of the gravity of the misconduct alleged here, it would be unlikely that warnings of unsatisfactory performance would be appropriate, or even necessary. 225 A termination of employment, whether by summary dismissal or otherwise, might still be held to be unfair if the process leading to the dismissal was manifestly deficient in offering the applicant procedural fairness (see Byrne & Anor v Australian Airlines; Burke v McGirr; Oswald v NSW Police Service; Johnson v Catholic Education Office, Diocese of Parramatta 87 IR 57; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 and Antonakopoulos v State Bank of New South Wales 91 IR 385). 226 It seems to me that it would be a rare case indeed which disclosed an absolutely faultless process, free of blemish or mistake. The usually highly charged atmosphere of a dismissal situation will guarantee a less than pristine process. 227 I have no doubt, with the benefit of hindsight, that the dismissal of the applicant might well have been better handled by the respondent. However, the faults in the process need to be balanced against the gravity of the allegations in the event they are proven. 228 On this point, I refer to my comments in Foster and Woolworths Limited (unreported, Matter IRC6385 of 1999, 27 October 2000): … it is now well settled law that proven deficiencies in the process are not necessarily fatal to an employer's decision to summarily dismiss an employee. It is the seriousness of the allegations, if proven, which, in my view, will be decisive in establishing whether the employer's decision to dismiss the employee was reasonably open to it. 229 This passage relied on a number of Full Bench decisions including Wang v Crestell Industries Pty Ltd; Rapp v Wauchope RSL Club, 81 IR 116; Bigg & Anor v New South Wales Police Service, 80 IR 434, Burke v McGirr, Busways v Johnson and Antanakopoulos v State Bank of New South Wales. 230 Notwithstanding the gravity of the allegations, an employer may take into account the applicant's past behaviour and performance and whether any earlier disciplinary warnings had been issued. See John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972). In this case, one might reasonably query the relevance of a warning issued many years ago with an exemplary intervening period of employment. However, a warning issued in the previous twelve months might well be indicative of a pattern of conduct or behaviour which is consistent with the misconduct for which the employee is ultimately dismissed. 231 I turn now to the procedural matters raised by the applicant's counsel. 232 I have been troubled by some aspects of the investigation. I expect my concerns will be rectified by the respondent. 233 The letters to Mr Bevan and Mr Harding included this direction "You are not to contact any person, or through a third party, any person mentioned in the attachments or this letter or to discuss this issue or associated matter. If you ignore this direction, it will result in your dismissal". 234 When an employee is suspended and an investigation is being conducted, it is unfair and unreasonable to demand that the employee not contact any other person. An employee's rights to consult his/her Association or seek legal advice are important and legitimate rights which must be spelt out by an employer in these circumstances. Mr Foy conceded as much in cross examination. 235 Notwithstanding this direction, it is apparent the applicant did not comply with it. It was entirely understandable that he would speak to his Association. However, he also spoke to his friend Mr Peter Taylor - a key figure in Mr Bevan's allegations. In this context, Mr Dawson's criticism of the direction can not be sustained as denial of procedural fairness to the applicant. 236 Nevertheless, I express some concern with the extensive inquiries made through three, even four, interviews with all staff about serious matters, including criminal allegations. Ms McMartin, for example, had three meetings and was clearly shaken and distressed. She was not offered an opportunity for someone to be present. No employee was told they had a right to have an Association representative present. While I accept that this was a fact finding exercise, the implications for employees of making admissions as to what they might have witnessed, may have had serious consequences for them. 237 In addition, many of the employees expressed fear of physical harm from persons directly involved in the investigation. In these circumstances, and when persons are obviously distressed, due consideration and common decency demands that employees be given an opportunity for a support person, or Association representative to be in attendance. 238 The respondent demanded that statements be provided by all employees. I do not accept that there is an obligation on employees to provide a statement during a fact finding exercise. The obligation will arise however, if allegations are made directly against an employee which might result in some form of disciplinary action. Indeed, the respondent's own policy is to "request" a statement, not require a statement. In my view, Mr Foy acted outside the policy by insisting that all employees make a statement. 239 Mr Whatmough gave evidence of informal disciplinary meetings or counselling interviews. He said these were provided for in the respondent's policy under the heading "other disciplinary action" (s14). This section has, as its conclusion, the possibility of dismissal. To suggest this is an informal disciplinary procedure is to misdescribe it completely and understate its gravity. 240 It should be stressed that my criticisms of the investigation relate exclusively to persons other than the applicant. In other words, the Commission can be satisfied that insofar as the applicant is concerned, the specific matters in s88 of the Act have not been offended. The applicant was fully aware of the allegations against him, he was given every opportunity to make out a defence and did so. He was represented, at all material times, by his Association. 241 Moreover, the employer was entitled to have regard for, and take account of, the applicant's past performance and warnings about physical incidents in the workplace (see para 230). 242 Further, I am completely satisfied that the gravity of the allegations, proven against the applicant, far outweigh the procedural deficiencies I have identified (see paras 227-229). 243 Mr Newall criticised the Association for submitting witness statements which appeared to delete references unfavourable to the applicant. Ms Keenan explained that she had never told any member to leave things out of their statements. She said, in any event, the intent of the statements remained the same. 244 In my judgement, this criticism does not reflect on the integrity of Ms Keenan or the Association. In any event, little turns on the omitted material. The applicant's case can readily be determined on the weight of evidence against him and the unreliability of his evidence on crucial issues. CONCLUSION 245 For the aforementioned reasons, I can find no basis, substantively or procedurally, for the Commission to intervene in the respondent's decision to terminate the applicant's employment. 246 Proceedings in this matter are concluded. Application IRC4577 of 2001 is dismissed. Peter Sams Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.